Mental distress as torture or ill-treatment

The Human Rights Committee, the European Court and the Inter-American system have all recognised that mental anguish can be as distressing as physical pain.

The organs of the European system have, since early case-law, upheld the view that Article 3 is applicable not only to physical injuries but also to mental or psychological suffering. In the Greek Case (1969, 12 Ybk 186), the Commission observed in its report that ‘[t]he notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable’. In the East African Asians Case (1981, EHHR 76) the Commission, extending this principle, rejected the submission by the United Kingdom Government that degrading treatment referred only to physical acts and emphasised that ‘[e]ven in the case of torture and inhuman treatment such a physical element is not essential’. The subsequent case-law of the Court confirms that degrading and/or inhuman treatment may be involved if psychological anguish reaches a sufficiently intense and serious level. (See, inter alia, Ireland v. The United Kingdom, Campbell and Cosans v. The United Kingdom, Application No. 7511/76, Judgement of 25 February 1982, Soering v. The United Kingdom , Application No. 7511/76, Judgement of 25 February 1982, Soering v. The United Kingdom , Application No. 25803/94, Judgement of 28 July 1999,V. v. The United Kingdom , Application No. 24888/94, Judgement of 16 December 1999 and X and Y v. The Netherlands , Application No. 8978/80, Judgement of 26 March 1985). In V. v.The United Kingdom, the Court left open the possibility that a failure to fix a tariff for a child offender in detention and leaving him/her in uncertainty over many years as to his/her future, might disclose mental and psychological suffering sufficient to reach the minimum level of severity under Article 3. Given that degrading treatment or punishment consists mainly of the sense of debasement and humiliation, such maltreatment or punishment takes on special significance when ascertaining psychological and mental suffering. Threats of torture will amount to serious mental suffering that can cross the threshold of at least ‘inhuman treatment’, if they are ‘sufficiently real and immediate’ (Campbell and Cosans v. The United Kingdom).

91. The Court also underscores that, the elements of the concept of torture established in Article 2 of the Inter-American Convention against Torture include methods to obliterate the personality of the victim in order to attain certain objectives, such as obtaining information from a person; or intimidation or punishment, which may be inflicted through physical violence or through acts that produce severe mental or moral suffering in the victim.

92. An international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, has been developed and, with regard to the latter, it has been recognized that the threat or real danger of subjecting a person to physical harm produces, under determined circumstances, such a degree of moral anguish that it may be considered “psychological torture.” The absolute prohibition of torture, in all its forms, is now part of international jus cogens.

93. Likewise, the Court considers that, according to the circumstances of each particular case, some acts of aggression inflicted on a person may be classified as mental torture, particularly acts that have been prepared and carried out deliberately against the victim to eliminate his mental resistance and force him to accuse himself of or confess to certain criminal conducts, or to subject him to other punishments, in addition to the deprivation of freedom itself.

94. In the case sub judice, it has been proved that Maritza Urrutia was subjected to acts of mental violence by being exposed intentionally to a context of intense suffering and anguish, according to the practice that prevailed at that time [?]. The Court also considers that the acts alleged in this case were prepared and inflicted deliberately to obliterate the victim’s personality and demoralize her, which constitutes a form of mental torture, in violation of Article 5(1) and 5(2) of the Convention to the detriment of Maritza Urrutia.

And in the Cantoral-Benavides Case (discussed above):

100. It should be pointed out that, according to international standards for protection, torture can be inflicted not only via physical violence, but also through acts that produce severe physical, psychological or moral suffering in the victim.

The Human Rights Committee was the first supervisory body to establish that the mental anguish suffered by relatives of victims of human rights abuses can result in the relatives themselves suffering ill-treatment at the hands of the state, in violation of human rights provisions prohibiting torture and ill- treatment.

1.1 The author of the communication [?] is a Uruguayan national, residing at present in Sweden. She submitted the communication on behalf of her daughter, Elena Quinteros Almeida, and on her own behalf.

1.2 The author describes the relevant facts as follows:

“My daughter (born on 9 September 1945) was arrested at her home in the city of Montevideo on 24 June 1976. Four days later, while she was being held completely incommunicado, she was taken by military personnel to a particular spot in the city near the Embassy of Venezuela. My daughter would appear to have told her captors that she had a rendezvous at that place with another person whom they wished to arrest. Once she was in front of a house adjoining the Embassy of Venezuela, my daughter succeeded in getting away from the persons accompanying her, jumped over a wall and landed inside the Embassy grounds. At the same time, she shouted out her name so as to alert passers-by to what was happening in case she was recaptured. The military personnel accompanying her then entered the diplomatic mission and, after striking the Secretary of the Embassy and other members of its staff, dragged my daughter off the premises.”

1.3 The author alleges that, due to this event, Venezuela suspended its diplomatic relations with Uruguay.

1.4 The author claims that since that day (28 June 1976) she could never obtain from the authorities any official information about her daughter’s whereabouts, nor was her detention officially admitted. She further claims that this denial of official information by the authorities of Uruguay was incompatible with the testimony of other persons (the author encloses two testimonies) and also numerous statements made privately by authorities and diplomatic representatives of Uruguay to the author herself and to others. The author, in addition, encloses an extract from a booklet entitled Mujeres y ninos Uruguayos desaparecidos (“Missing Uruguayan Women and Children”) concerning the case of her daughter, in which it is mentioned in particular that on 2 March 1979, the Ambassador and Representative of Uruguay to the United Nations Commission on Human Rights at Geneva, who was at that time Director of Foreign Policy of the Ministry of Foreign Affairs, told the author that her daughter was alive, that she had been taken from the Venezuelan Embassy by members of the Uruguayan police and army, that she was being kept a prisoner and that efforts were being made to clarify responsibilities.

1.5 The first testimony enclosed by the author, dated January 1981, is from Cristina Marquet Navarro, who states that she personally knew Elena Quinteros. Cristina Marquet Navarro states that she was arrested on 29 July 1976 in Montevideo, that on 8 August 1976 she was taken to a military unit, that there all detainees were kept blindfolded and with their hands tied and that they were systematically subjected to torture. She adds that all detainees received an identification number upon arrival, by which they were addressed, and that her number was 2572. Cristina Marquet further states that during her first night there, she heard “the despairing cries of a woman who kept saying ‘why didn’t they kill me, why didn’t they kill me?’ It was definitely the voice of Elena Quinteros. It was clear from the desperation of her cries that she was being brutally tortured”. Cristina Marquet alleges that later she was able to establish that Elena Quinteros had been given number 2537. She further alleges that once, her eye-bandage being loose, she could see Elena Quinteros who was lying on a mattress. Elena Quinteros’ state of health was extremely poor “as a result of the brutal torture to which she had been and was being subjected daily”. [?].

1.6 The second testimony is from Alberto Grille Motta. He states that he and other Uruguayans, among them Enrique Baroni, who had taken refuge at the Embassy of Venezuela in Montevideo, saw a number of Embassy employees running out of the building on the morning of 28 June 1976; that Enrique Baroni, who had gone up to the first floor, saw a young woman being dragged away by a man whom he recognized [?]. Mr. Grille adds that the following day, on 29 June 1976, the parents-in-law of Elena Quinteros came to the Embassy with a picture of their daughter-in-law and her identity was confirmed [?].. He further claims that the Ambassador told him some months later that he was in possession of information pointing to a policeman known under the same nickname as the one mentioned by Enrique Baroni and whose real name was ?, who, together with other police personnel, had taken part in the abduction of Elena Quinteros.

[?]

1.8 The author further states that there are no domestic remedies that could be invoked and have not been exhausted, since her daughter’s arrest has always been denied by the Uruguayan authorities and the remedy of habeas corpus is only applicable in the case of detained persons.

1.9 The author claims that the following articles of the Covenant have been violated with respect to her daughter: 7, 9, 10, 12, 14, 17 and 19. She adds that she is herself a victim of violations of article 7 (psychological torture because she does not know where her daughter is) and of article 17 of the Covenant, because of interference with her private and family life.

[?]

6. In its submission under article 4 (2) of the Optional Protocol, dated 13 August 1982, the State party referred to the contents of an earlier note, dated 14 June 1982, which appeared to be a late submission under rule 91 of the provisional rules of procedure. The text of this earlier note read as follows:

“The Uruguayan Government wishes to inform that the person in question (Elena Quinteros) has been sought throughout Uruguay since 8 May 1975. The assertions contained in this communication are therefore rejected as unfounded, since the Government had no part in the episode described.”

[?]

Interrim decision of the Committee

8. On 15 October 1982, before formulating its views in the light of the information made available to it by the author of the communication and by the State party concerning the alleged arrest, detention and mistreatment of Elena Quinteros, the Human Rights Committee decided to adopt the following interim decision:

“The Human Rights Committee,

Noting that the author of the communication has submitted detailed information, including eyewitness testimonies, concerning the detention of her daughter, Elena Quinteros,

Taking note also of the brief information submitted by the State party on 14 June and 13 August 1982, to the effect that Elena Quinteros had been sought throughout Uruguay since 8 May 1975 and that the Government of Uruguay had no part in the events described by the author of the communication,

Concerned., however, that the State party has made no attempt to address in substance the serious and corroborated allegations made against it, but merely denies any knowledge thereof,

Concluding, that the information furnished by the State party, so far, is insufficient to comply with the requirements of article 4 (2) of the Optional Protocol,

Urges the State party, without further delay and with a view to clarifying the matters complained of, to conduct a thorough inquiry into the allegations made and to inform the Human Rights Committee Of the outcome of such inquiry not later than by 1 February 1983.”

9. In a note dated 12 January 1983, in response to the Human Rights Committee’s interim decision, the State party stated the following:

“The Government of Uruguay wishes to reiterate what it said to the Committee in its reply to the note of 4 December 1981 on this case” (see para. 6 above).

[?]

10.3 Concerning her daughter’s arrest inside the Venezuelan Embassy grounds on 28 June 1976, the author gives the following details:

“Believing that Elena was going to denounce someone, her captors brought her near to the Embassy, allowing her freedom of movement so that she could go to the supposed rendezvous. Elena, who had already given thought to the possibility, went into the house next to the Embassy. From there she managed to jump over the dividing wall, thus landing in Venezuelan territory. She shouted ‘Asylum!’ and stated her name and occupation. When they realized what was happening, the policemen escorting her came through the gate giving access to the gardens of the Embassy, without being stopped by the four policemen on guard. When they heard Elena shouting, the Ambassador and his secretary, as well as other officials, ran towards her and were able to see her being beaten and dragged by the hair by the policemen who were trying to remove her by force from Venezuelan territory. The Counsellor of the Embassy, Mr. Frank Becerra, and the Secretary, Baptista Olivares, tried to prevent the woman seeking refuge from being removed from the Embassy garden before she could enter the residence itself. While Elena was being dragged outside, the two diplomats were grappling with the police, grabbing hold of Elena’s legs. One of the policemen struck Mr. Becerra who fell, thus enabling them to take Elena away and put her in a greenish Volkswagen whose registration number, as was seen by a large number of residents who had observed each stage of the police raid, ended in 714 and which a Police Headquarters communiqué identified on 2 July as the ‘car with unidentified suspects who abducted a woman’. In their anger, the police even went to the inhuman lengths of slamming the car door hard against Elena’s legs while she was being bundled into the car, certainly causing a fracture. The car then moved off at high speed, with its doors still open, against the oncoming vehicles and despite the heavy traffic to be found at that hour, about 10.30 a.m., in the Bulevar Artigas, where the Embassy is situated, at number 1257, in the ‘Pocitos’ district, 5 km from the centre of Montevideo.”

Views of the Committee

11. In accordance with its mandate under article 5 (1) of the Optional Protocol, the Committee has considered the communication in the light of the information made available to it by the author of the communication and by the State party concerned. In this connection, the Committee has adhered strictly to the principle audiatur et altera pars and has given the State party every opportunity to furnish information to refute the evidence presented by the author. The State party appears to have ignored the Committee’s request for a thorough inquiry into the author’s allegations. The Committee reiterates that it is implicit in article 4 (2) of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, especially when such allegations are corroborated by evidence submitted by the author of the communication, and to furnish to the Committee the information available to it. In cases where the author has submitted to the Committee allegations supported by substantial witness testimony, as in this case, and where further clarification of the case depends on information exclusively in the hands of the State party, the Committee may consider such allegations as substantiated in the absence of satisfactory evidence and explanations to the contrary submitted by the State party.

12.1 With regard to the identity of the alleged victim, the Committee [?] has no doubt that the woman who was able to go inside the Embassy of Venezuela at Montevideo, on 28 June 1976, requesting asylum and who was forcibly removed from the Embassy grounds, put in a car and taken away, was Elena Quinteros.

12.2 In addition, the Committee cannot but give appropriate weight to the following information:

(i) Mr. Grille Motta in his testimony states that, during the incident of 28 June 1976, Enrique Baroni could identify one of Elena Quinteros’ captors as being a policeman, nicknamed ?”; c/

(ii) Mrs. Marquet Navarro in her testimony asserts that she saw Elena Quinteros in August 1976 in the detention place where she herself was being held and that she could observe that Elena Quinteros had been subjected to severe ill-treatment. Mrs. Marquet also gives the names of two male officers and two female soldiers who were “dealing” with Elena Quinteros.

12.3 The Human Rights Committee, accordingly, finds that, on 28 June 1976, Elena Quinteros was arrested on the grounds of the Embassy of Venezuela at Montevideo by at least one member of the Uruguayan police force and that in August 1976 she was held in a military detention centre in Uruguay where she was subjected to torture.

14. With regard to the violations alleged by the author on her own behalf, the Committee notes that, the statement of the author that she was in Uruguay at the time of the incident regarding her daughter, was not contradicted by the State party. The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7.

15. The Human Rights Committee reiterates that the Government of Uruguay has a duty to conduct a full investigation into the matter. There is no evidence that this has been done.

[?]

Comment

Here the Committee found a violation as regards the disappearance victim but it also found that there had been a breach of Article 7 in relation to the mother of the victim because of the anguish the disappearance of her daughter had caused her. The Committee did not specify whether the suffering of the mother was inhuman or degrading treatment or whether her situation amounted to torture (see also Laureano v. Peru , Communication No. 540/1993, Views of 25 March 1996).

Similar results have come out of other systems. In the case of Kurt v. Turkey the European Court dealt with the mother of a disappeared person as a victim.

34. The applicant, Mrs Koçeri Kurt, is a Turkish citizen who was born in 1927 and is at present living in Bismil in south-east Turkey. [?]. Her application to the Commission was brought on her own behalf and on behalf of her son, Üzeyir Kurt, who, she alleges, has disappeared in circumstances engaging the responsibility of the respondent State.

[?]

A. Facts as presented by the applicant

1. Concerning the disappearance of the applicant’s son

35. From 23 to 25 November 1993 security forces, made up of gendarmes and a number of village guards, carried out an operation in the village of Aill.[?].

36. According to the applicant, around noon on 24 November 1993, when the villagers had been gathered by the soldiers in the schoolyard, the soldiers were looking for her son, Üzeyir [?]. When the soldiers asked Aynur Kurt, his daughter, where her father was, Aynur told them he was at his aunt’s house. The soldiers went to Mevlüde’s house with Davut Kurt, another of the applicant’s sons, and took Üzeyir from the house. Üzeyir spent the night of 24–25 November 1993 with soldiers in the house of Hasan Kiliç.

On the morning of 25 November 1993, the applicant received a message from a child that Üzeyir wanted some cigarettes. The applicant took cigarettes and found Üzeyir in front of Hasan Kiliç’s house surrounded by about ten soldiers and five to six village guards. She saw bruises and swelling on his face as though he had been beaten. Üzeyir told her that he was cold. She returned with his jacket and socks. The soldiers did not allow her to stay so she left. This was the last time she saw Üzeyir. The applicant maintains that there is no evidence that he was seen elsewhere after this time.

37. On 30 November 1993 the applicant applied to the Bismil public prosecutor, Ridvan Yildirim, to find out information on the whereabouts of her son. On the same day, she received a response from Captain Izzet Cural at the provincial gendarmerie headquarters stating that it was supposed that Üzeyir had been kidnapped by the PKK (the Kurdish Workers’ Party). Captain Cural, who had proposed the plan for the operation in the village, replied in identical terms on 4 December 1993. The district gendarmerie commander noted on the bottom of the applicant’s petition of 30 November that Üzeyir had not been taken into custody and that he had been kidnapped by the PKK.

38. On 14 December 1993 the applicant applied to the National Security Court in Diyarbakir which replied that he was not in their custody records. On 15 December 1993 she contacted the Bismil public prosecutor again but was referred to the gendarmerie. Finally, on 24 December 1993 the applicant approached the Diyarbakir Human Rights Association for help and made a statement on the circumstances surrounding her son’s disappearance.

[?]

2. Concerning alleged intimidation and interference with the exercise of the right of individual petition

(a) In respect of the applicant

39. The applicant maintains that since submitting her application to the Commission on 11 May 1994 she has been the target of an extraordinarily concerted campaign by the State authorities to make her withdraw her application.

[?]

FINAL SUBMISSIONS TO THE COURT

40. The applicant requested the Court in her memorial to find that the respondent State was in violation of Articles 2, 3, 5, 14 and 18 of the Convention on account of her son’s “disappearance” and that she herself is a victim of a violation of Articles 3 and 13. She further contended that the respondent State had failed to comply with its obligations under Article 25§ 1. She requested the Court to award her and her son just satisfaction under Article 50.

[?]

AS TO THE LAW

[?]

Iv. alleged violation of article 3 of the convention in respect of the applicant HERSELF

41. The applicant contended that she herself was the victim of inhuman and degrading treatment on account of her son’s disappearance at the hands of the authorities. She requested the Court to find, like the Commission, that the suffering which she has endured engages the responsibility of the respondent State under Article 3 of the Convention.

She invoked in support of her argument the decision of the United Nations Human Rights Committee in the case of Quinteros v. Uruguay of 21 July 1983 (see paragraph 71 above) affirming that the next-of-kin of disappeared persons must also be considered victims of, inter alia, ill-treatment.

42. The Commission considered that the uncertainty, doubt and apprehension suffered by the applicant over a prolonged and continuing period of time caused her severe mental distress and anguish. Having regard to its conclusion that the disappearance of her son was imputable to the authorities, the Commission found that she had been subjected to inhuman and degrading treatment within the meaning of Article 3.

43. The Government contested the Commission’s conclusion, reiterating that there was no credible evidence to support the applicant’s view that her son had been detained by the security forces. While sympathising with the applicant’s plight, they contended that there was no causal link between the alleged violation of her son’s rights under the Convention and her distress and anguish.

44. The Court notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see, among other authorities, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 31,§ 83). It recalls in this respect that the applicant approached the public prosecutor in the days following her son’s disappearance in the definite belief that he had been taken into custody. She had witnessed his detention in the village with her own eyes and his non-appearance since that last sighting made her fear for his safety, as shown by her petitions of 30 November and 15 December 1993 (see paragraphs 39 and 42 above). However, the public prosecutor gave no serious consideration to her complaint, preferring instead to take at face value the gendarmes’ supposition that her son had been kidnapped by the PKK. As a result, she has been left with the anguish of knowing that her son had been detained and that there is a complete absence of official information as to his subsequent fate. This anguish has endured over a prolonged period of time.

45. Having regard to the circumstances described above as well as to the fact that the complainant was the mother of the victim of a human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress, the Court finds that the respondent State is in breach of Article 3 in respect of the applicant.

[?]

Comment

In this case the Court decided to deal with issues arising because of the disappearance of the applicant’s son under Article 5 (detention) but found, invoking the Quinteros case, that the relatives of disappeared persons must be considered victims of ill-treatment. The mother of the disappeared person suffered the anguish for a long time of knowing that her son had been detained and received no information from the authorities on his fate. The European Court found that ‘as a mother of a victim of a human rights violation and herself a victim of the authorities’ complacency in the face of her anguish and distress’ there had been a breach of Article 3 in respect of the mother of the disappeared. In Çakici v. Turkey , Application No. 23657/94, Judgement of 8 July 1999, paragraphs 98-99), the Court elaborated further on the implementation of Article 3 as regards relatives of alleged victims of grave human rights violations, finding that the Kurt case (above) did not establish a general principle that a family member of a disappeared person is always a victim of treatment contrary to Article 3 and that whether the relative is such a victim, will depend on the existence of ‘special factors which gives the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation’:

98. The Court observes that in the Kurt case [?] which concerned–the disappearance of the applicant’s son during an unacknowledged detention, it found that the applicant had suffered a breach of Article 3 having regard to the particular circumstances of the case. It referred particularly to the fact that she was the mother of a victim of a serious human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress. The Kurt case does not, however, establish any general principle that a family member of a “disappeared person” is thereby a victim of treatment contrary to Article 3. Whether a family member is such a victim will depend on the existence of special factors which gives the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct.

99. In the present case, the applicant was the brother of the disappeared person. Unlike the applicant in the Kurt case, he was not present when the security forces took his brother, as he lived with his own family in another town. It appears also that, while the applicant was involved in making various petitions and enquiries to the authorities, he did not bear the brunt of this task, his father Tevfik Çakici taking the initiative in presenting the petition of 22 December 1993 to the Diyarbakir National Security Court. Nor have any aggravating features arising from the response of the authorities been brought to the attention of the Court in this case. Consequently, the Court perceives no special features existing in this case which would justify finding an additional violation of Article 3 of the Convention in relation to the applicant himself. Accordingly, there has been no breach of Article 3 as concerns the applicant in this case.

Similarly, the Inter-American Court has found in the Villagrán Morales case that the relatives of murdered street-children were themselves victims of a violation of the right to humane treatment. This case is also discussed under the right to life, The duty to take ‘reasonable’ measures to protect individuals whose lives are in danger because of criminal acts of other individuals .

2. [?] The Commission referred this case for the Court to determine whether Guatemala had violated the following Articles of the Convention: 1 (Obligation to Respect Rights), 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection). According to the application, these violations were the result of the abduction, torture and murder of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes; the murder of Anstraum [Aman] Villagrán Morales; and the failure of State mechanisms to deal appropriately with the said violations and provide the victim’s families with access to justice.

3. As two of the victims, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes, were minors when they were abducted, tortured and murdered, and Anstraum Aman Villagrán Morales was a minor when he was killed, the Commission requested the Court to order the State to take the necessary steps to conduct a prompt, impartial and effective investigation into the facts “so that [the individual responsibilities for the alleged violations may be] recorded in an officially authorized report” and “those responsible may be punished appropriately”. It also requested the Court to order the State “to vindicate the names of the victims and make fair payment to the persons affected by the violations of the aforementioned rights” and to pay costs to the victims and their representatives. In its application, the Commission also cited the violation of Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture [?].

[?]

X Violation of Article 5

(Right to Humane Treatment)

148. In the application, the Commission alleged that the State had violated Article 5 of the American Convention against Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes because they had been abducted by State agents who “were responsible for the physical integrity of the victims while they were [in] their custody”.

149. The Commission observed that, when the facts in this case occurred, the so-called “street children” were subject to different forms of “abuse and persecution” by “agents from certain [State] security forces”, and this inter-American body had already pointed out this circumstance in several of its reports.

[?]

151. In its final arguments, the Commission declared that the four young victims of torture were retained incommunicado, a situation which, in itself, clearly results in “great anxiety and suffering”.

152. In continuation, it made special reference to the tender age of the victims of torture, two of them minors, Julio Roberto Caal Sandoval, 15 years of age, and Jovito Josué Juárez Cifuentes, 17 years of age, and the fact that they lived on the streets.

153. Furthermore, the Commission added that the circumstances surrounding the death of these youths had caused a great deal of suffering to the families of the victims. The way in which the bodies were abandoned and the lack of answers about what happened caused the families anxiety and fear. In the Commission’s opinion, the evidence makes it clear that the authorities did not try to communicate with the families or provide them with further information once the proceedings were underway.

[?]

156. The Court considers that the violation of this Article should be examined from two angles. First, whether or not Article 5.1 and 5.2 have been violated to the detriment of the youths Contreras, Figueroa Túnchez, Juárez Cifuentes and Caal Sandoval should be analyzed. Second, the Court should evaluate whether the families of the victims were, themselves, subjected to cruel, inhuman and degrading treatment.

157. In the instant case, there is considerable, concurring evidence that the physical integrity of these four youths was violated and that, before they died, they were victims of serious ill-treatment and physical and psychological torture by the State agents and, more specifically, members of the National Police Force.

158. The bodies of the youths were found dead with signs of serious physical violence that the State has been unable to explain. The file contains photographs of the faces and necks of the bodies of the youths. Different injuries are very visible in these photographs, including those made by the bullets that were the cause of death and other signs of physical violence. The four autopsies mention the approximate location of the shot wounds and, in two case, refer to other injuries that can be clearly seen in the photographs, or are located in other parts of the bodies, attributing them generically to “animal bites”. The size of the wounds is not specified or their depth, the type of animal that could have produced them, or whether they occurred before or after death. The autopsies of the other two youths provide no explanation of the injuries to their bodies.

[?]

162. It should be remembered that the youths were retained clandestinely by their captors for between 10 and 21 hours. This lapse of time occurred between two extremely violent circumstances: forced seizure and death due to the impacts of a firearm while defenceless, which the Court has already declared proved (supra, para. 82). It is reasonable to conclude that the treatment they received during those hours was extremely aggressive, even if there was no other evidence in this regard.

163. While they were retained, the four youths were isolated from the external world and certainly aware that their lives were in danger. It is reasonable to infer that, merely owing to this circumstance, they experienced extreme psychological and moral suffering during those hours.

[?]

168. Having proved the fact that the physical and mental integrity of the youths, Contreras, Figueroa Túnchez, Caal Sandoval and Juárez Cifuentes was violated and that they were victims of ill-treatment and torture, the Court proceeds to determine the facts relating to the attribution of responsibility.

169. The Court believes that the ill-treatment and torture was practiced by the same persons that abducted andkilled the youths. Since the Court has established that those responsible for these acts were member of the National Police Force (supra, paras. 128 and 142), it is pertinent to conclude that the perpetrators of the ill-treatment and torture carried out in the time between the seizure and the murders, were State agents, whether they were those investigated and charged in the domestic proceedings or others.

170. In this respect, we should recall the presumption established by the European Court when considering that the State is responsible for ill-treatment exhibited by a person who has been in the custody of State agents, if the authorities are incapable of demonstrating that those agents did not incur in such behavior [29].

171. In its final written arguments, the Commission indicated that the circumstances of the death of the victims together with the lack of action by the State had caused the victims’ next of kin “anxiety and also considerable fear”. The Court considers that the fact that this point has only been raised during the final arguments, does not, per se, prevent examining it and deciding on it.

[?]

173. Furthermore, it is evident that the national authorities did not take any measures to establish the identity of the victims, who remained registered as XX until their next of kin came in person to identify them, even though three of the youths [?] had a criminal record in the “criminal archives”. This evident negligence of the State should be added to the fact that the authorities did not make adequate efforts to locate the victims’ immediate next of kin, notify them of their death, deliver the bodies to them and provide them with information on the development of the investigations. All these omissions delayed and, in some cases, denied the next of kin the opportunity to bury the youths according to their traditions, values and beliefs and, therefore, increased their suffering. Added to this is the feeling of insecurity and impotence caused to the next of kin by the failure of the public authorities to fully investigate the corresponding crimes and punish those responsible.

174. Among the actions of the State agents who intervened in the facts of the case that produced an impact on the families, the Court must stress the treatment of the corpses of the youths whose bodies were discovered in the San Nicolás Woods [?]. They were not only victims of extreme violence resulting in their physical elimination, but also, their bodies were abandoned in an uninhabited spot, they were exposed to the inclemency of the weather and the action of animals, and they could have remained thus during several days, if they had not been found by chance. In the instant case, it is clear that the treatment given to the remains of the victims, which were sacred to their families and particularly their mothers, constituted cruel and inhuman treatment for them.

[?]

176. The European Court has had the opportunity to issue an opinion on the condition of victim of inhuman and degrading treatment of the mother as a result of the detention and disappearance of her daughter at the hands of the authorities. In order to determine if Article 3 of the European Convention , corresponding to Article 5 of the American Convention, has been violated or not, the European Court evaluated the circumstances of the case, the gravity of the ill-treatment and the fact of not having official information to clarify the case. In the light of these considerations and that it was the mother of the victim of a human rights violation, the European Court concluded that she was also a victim and that the State had violated the said Article 3 31].

177. Owing to the foregoing, the Court concludes that the State violated Article 5.1 and 5.2 of the American Convention on Human Rights , in relation to Article 1.1 of the Convention, to the detriment of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Jovito Josué Juárez Cifuentes and Julio Roberto Caal Sandoval, and violated Article 5.2 of the Convention, in relation to its Article 1.1, to the detriment of their mothers [?].

[?]

Comment

Here the Inter-American Court, referring to the Quinteros case (above), found that in addition to violations of various rights under the American Convention as regards the victims, the mothers of the murdered children were also victims of inhuman treatment because of inter alia, the authorities did not take measures to try to identify the victims nor try adequately to locate their next of kin, ‘notify them of their death, deliver the bodies to them and provide them with information on the development of the investigations. All these omissions delayed and, in some cases, denied the next of kin the opportunity to bury the youths according to their traditions, values and beliefs and, therefore, increased their suffering. Added to this is the feeling of insecurity and impotence caused to the next of kin by the failure of the public authorities to fully investigate the corresponding crimes and punish those responsible.’ The Court added: ‘In the instant case, it is clear that the treatment given to the remains of the victims, which were sacred to their families and particularly their mothers, constituted cruel and inhuman treatment for them.’

In Bámaca Velásquez v. Guatemala (Series C No. 70, Judgement of 25 November 2000, also discussed under the right to life, Disappearances and extra judicial executions ) involving ‘disappearance’ and other grave violations of human rights, the Inter-American Court discusses in detail the next of kin as victims:

159. It its final arguments, the Commission requested the Court to declare that Article 5 of the Convention had been violated, to the detriment of the wife of Bámaca Velásquez, Jennifer Harbury, and his direct next of kin, José de León Bámaca Hernández, Egidia Gebia Bámaca Velásquez and Josefina Bámaca Velásquez.

160. This Court has indicated on other occasions, that the next of kin of the victims of human rights violations may, in turn, become victims [?]. In a case involving the forced disappearance of a person, the Court stated that the violation of the mental and moral integrity of the next of kin is precisely a direct consequence of the forced disappearance. In particular, the Court considered that the “circumstances of such disappearances generate suffering and anguish, in addition to a sense of insecurity, frustration and impotence in the face of the public authorities’ failure to investigate.”[?]

161. This Court has even stated, in the recent “Street Children” case, that the mothers of the victims suffered due to the negligence of the authorities in establishing the latter’s identity; because the said State agents “did not make the necessary efforts to immediately locate the relatives” of the victims and notify them of their death, delaying the opportunity to give them “burial according to their traditions”; because the public authorities abstained from investigating the corresponding crimes and punishing those responsible. In that case, the suffering of the victims’ next of kin also arose from the treatment of the corpses, because they appeared after several days, abandoned in an uninhabited place with signs of extreme violence, exposed to the inclemency of the weather and the action of animals. Such treatment of the victims’ remains, “which were sacred to their families and, particularly, their mothers, constituted cruel and inhuman treatment for them.”[?]

162. The jurisprudence of the European Court of Human Rights has also accepted that, when fundamental human rights are violated, such as the right to life or the right to humane treatment, the persons closest to the victim may also be considered victims. That Court had the occasion to go on record on the condition of victim of cruel, inhuman or degrading treatment of a mother due to the detention and disappearance of her son and, to this end, it evaluated the circumstances of the case, the gravity of the ill-treatment and the fact that she did not receive official information to clarify the facts. In view of these considerations, the European Court concluded that this person had also been a victim and that the State was responsible for violating Article 3 of the European Convention [?].

163. Recently that Court developed this concept further, emphasizing that the following were included among the issues to be considered: the closeness of the family relationship, the particular circumstances of the relationship with the victim, the degree to which the family member was a witness of the events related to the disappearance, the way in which the family member was involved in attempts to obtain information about the disappearance of the victim and the State’s response to the steps undertaken [?].

164. In the same way, the United Nations Human Rights Committee [?] has stated that the next of kin of those who are detained and disappear should be considered victims of ill-treatment, among other violations. [?].

165. The Court has evaluated the circumstances of this case, particularly the continued obstruction of Jennifer Harbury’s efforts to learn the truth of the facts and, above all, the concealment of the corpse of Bámaca Velásquez and the obstacles to the attempted exhumation procedures that various public authorities created, and also the official refusal to provide relevant information. Based on these circumstances, the Court considers that the suffering to which Jennifer Harbury was subjected clearly constitutes cruel, inhuman or degrading treatment, violating Article 5(1) and 5(2) of the Convention. The Court also considers that ignorance of the whereabouts of Bámaca Velásquez caused his next of kin the profound anguish mentioned by the Committee and, therefore, considers that they, too, are victims of the violation of the said Article.

A more recent case where the Court found that the relatives of a victim of human rights violations also suffered ill-treatment is Humberto Sánchez v. Honduras (Series C No. 99, Judgement of 7 June 2003) where the Court elaborated:

[A]bridgment of the right to mental and moral integrity of the next of kin of Juan Humberto Sánchez comes as a direct consequence: of his illegal and arbitrary detention [?]; of the uncertainty of not knowing the whereabouts of Juan Humberto Sánchez for over a week; of the signs of extreme violence on the corpse when it was found; of the illegal and arbitrary detention and the threats and harassment suffered by the stepfather at the hands of agents of the State; of the illnesses suffered by the mother and the stepfather; of lack of investigation and punishment of those responsible for these facts. All of this causes suffering, anguish, insecurity, frustration, and a feeling of powerlessness of the next of kin vis-à-vis the State authorities. Therefore, the next of kin can be considered to have been the victims of cruel, inhuman, and degrading treatment.

[?] In this specific case, the next of kin of the victim suffered additionally due to the treatment given to the mortal remains of Juan Humberto Sánchez, which were found in an advanced state of decay with signs of great violence, wedged between two rocks in a river; and when they were found by the local authorities, they did not conduct the necessary inquiries for a serious investigation, such as, for example, taking photographs or performing an autopsy for lack of the respective economic means in that part of the country. Furthermore, due to the state of decay of said remains, the Justice of the Peace of Colomoncagua ordered their burial at the place where they were found, without the consent of the next of kin (supra 70.12). As the mother of the victim stated, “as they buried him [?] as if they had buried an animal, as if my son had not been a Christian.” Said treatment of the remains of the victim “which were sacred for his relatives, and specifically for [his mother], constituted for [them] a cruel and inhuman treatment.

See also Mack Chang v. Guatemala (Series C No. 101, Judgement of 25 November 2003), where the Court stated, inter alia, that the next of kin of the victim ‘must be considered victims because the State has damaged their psychological and moral integrity.’